Trivago, a price comparison, recent lost an appeal in Australia regarding how it ordered the listings on its affiliate program website. Trivago's conduct was held to be misleading, and therefore illegal, in Australia.
Can you give your User ID to someone else to use your account? And what if that someone then uses your account for a purpose not allowed by the user agreement? Are you responsible? This is the subject of a possible lawsuit against CoreLogic in Australia.
In addition to the privacy review, the government is conducting an AI review.
"The Australian Government recognises that accelerating the development, adoption and adaption of artificial intelligence (AI) will have profound social and economic outcomes for all Australians. We have an opportunity and a responsibility to strive for a better future. A future where Australians develop and use AI to solve national problems, build competitive businesses and increase our collective wellbeing.
To achieve this vision, the Australian Government will need a plan. To inform this plan, the Department of Industry, Science, Energy and Resources has released a discussion paper that seeks public input to an AI Action Plan for Australia."
You can read the discussion paper and have your say at: https://consult.industry.gov.au/digital-economy/ai-action-plan
Submissions close on Friday, 27th November 2020, two days before submissions close for the privacy law consultation.
Section 230 of the Communications Decency Act is supposedly being reviewed. From the NY Times:
Chief executives from Google, Facebook and Twitter appeared before a Senate hearing on a law that protects internet companies from liability for much of what their users post, and on how they moderate content.
Democrats focused on misinformation and extremism. They also accused Republicans of holding the hearing to benefit President Trump.
Republicans accused the executives of selective censorship, questioning Twitter’s Jack Dorsey, above, on how the company handled specific tweets. “Mr. Dorsey, who the hell elected you and put you in charge of what the media are allowed to report and what the American people are allowed to hear?” Senator Ted Cruz said.
The Australian Government is undertaking a complete review of The Australian Privacy Act.
Unfortunately, after a year of work, the government is only giving 4 weeks to make submissions in respect of a very detailed issues paper.
One topic for consideration is whether to legislate and create a privacy tort in Australia.
Further information available here.
How Police Can Crack Locked Phones—and Extract InformationA report finds 50,000 cases where law enforcement agencies turned to outside firms to bypass the encryption on a mobile device.
Read in WIRED: https://apple.news/Av8HKmpc-SIyx8vccKTIF2w
It was only a matter of time. The restaurant chain Wagamama has been reported to the UK Information Commissioner’s Office (ICO) for allegedly using contact details provided for Covid track and trace to send surveys to customers.
See The Times
An American who complained on TripAdvisor that a resort hotel in Thailand wanted to charge him a $15 corkage fee for bringing his own bottle of gin to the restaurant was arrested this month and spent a weekend in jail. If convicted of criminal defamation, he faces up to two years in prison. So don't write anything bad about the Sea View Koh Chang resort, which had the charges brought.
After a backlash, the resort had some regrets. “We agree that using a defamation law may be viewed as excessive for this situation,” the hotel acknowledged.
The newspapers are appealing the decision of the NSW Court of Appeal that decided that media companies can be held responsible for defamatory comments under stories they post on Facebook.
The Court of Appeal decision is not surprising. Compare prior cases:
A recent decision in Australia, concerning whether Facebook could be served in California, was decided by the Federal Court of Australia. This case arises out of a privacy action brought against Facebook by ACMA in relation to the Cambridge Analytics issues.
A recent dispute between two taxi companies confirms that a telephone number is not property and is not owned by the telco customer.
Compare this domain name decision: Multi-National Concepts Pty Ltd v. 1300 Directory Pty Ltd
The Office of the National Data Commissioner has released an exposure draft of the Data Availability and Transparency Bill for public comment. - https://www.abc.net.au/news/2020-09-16/government-draft-law-share-personal-data-between-agencies/12666792)
More information and the draft bill is available here: https://www.datacommissioner.gov.au/exposure-draft/dat
The objects of this law are to:
(a) promote better availability of public sector data; and
(b) enable consistent safeguards for sharing public sector data; and
(c) enhance integrity and transparency in sharing public sector data; and
(d) build confidence in the use of public sector data; and
(e) establish institutional arrangements for sharing public sector data.
The UK Intellectual Property Office has announced a call for views on artificial intelligence and intellectual property. In particular, the UK IPO wants to hear about the implications that AI might have for IP policy, and, likewise, what impact IP might have on AI.
See the full consultation: https://www.gov.uk/government/consultations/artificial-intelligence-and-intellectual-property-call-for-views
The consultation closes on 11 November 2020.
On Monday September 7, 2020, the European Data Protection Board (EDPB) issued draft Guidelines 8/2020 on the targeting of social media users.
The Draft Guidelines have far-reaching implications for social media platforms, advertisers, and adtech companies, as they will result in a clarification of the roles and responsibilities of the key stakeholders, and establish rules for consent.
The New South Wales Court of Appeal dismissed an appeal in respect of a first instance decision of the Supreme Court that found a series of posts and comments about the former Mayor of the Narrabri Shire Council made on a Facebook page were defamatory.
The trial judge found that a comment endorsing a defamatory post was sufficient to attract liability as a secondary publisher of the defamatory post.
On Appeal, the court agreed that the principles of secondary publication are well established, and refused leave to appeal.
In a court hearing on Friday, 26 June 202, US-based Facebook has argued that it does not carry on business in Australia despite users in Australia accessing its website, calling for the dismissal of action brought by the Australian Information Commissioner over alleged privacy breaches and Cambridge Analytics.
The law had put the onus for analysing content solely on tech platforms such as Facebook without the involvement of a judge, within a very short time frame, and with the threat of hefty penalties.
Decision (in French of course)
NY Times article
"CCG members also noted the development of cloud security as an emerging risk area, and that data held in cloud environments should be encrypted and protected by appropriate intrusion detection/prevention controls. In some cases, it may be advisable to include “kill switch” technology, which allows for immediate disconnection to manage the risk of a cyber attack having a more widespread impact."
See NY Times Article: https://www.nytimes.com/2020/04/28/business/star-wars-may-the-fourth-disney.html
One professional photographer found out about this the hard way.
"Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made."
See Sinclair v. Ziff Davis and Mashable
Google has been served with a third preliminary discovery lawsuit in Australia seeking the identity of online reviewers, this time by a Melbourne brothel and escort service seeking to eliminate 11 one-star reviews from the search engine.
"We consider the design of the Facebook platform meant that users were unable to exercise reasonable choice and control about how their personal information was disclosed," says Australian Information Commissioner and Privacy Commissioner Angelene Falk.
Whether this actually accomplishes what they want to do is uncertain.
Using small snippets of public available music (or computer code) to create a work, that is the same as a well-known larger work, may still be copyright infringement. It depends on whether the creator knew of and had access to the well-known larger work.
See Dais Studios case, where Ben Petro copied public Java script to create a larger computer program. See also AFR Article
This also has relevance to AI programs and how they are trained.
The injunction was upheld by both the Court of Appeal and the Supreme Court of Canada, but Google then obtained an order from a California court making it unenforceable in the United States. Google now applies to set aside or vary the injunction. Google was unsuccessful.
Comments in this Canadian Blog
- Harold Cohen – The Age of Intelligence Machines (1987) - https://www.youtube.com/watch?v=IPczQgCuOOc&feature=youtu.be
- Is it art? Portrait created by algorithm on sale at Christie’s – https://www.youtube.com/watch?v=yeshFQZCD7E
This is similar to the Meriton case, discussed in posts below, regarding misleading hotel reviews on TripAdvisor.
The judge hearing the case is Justice Robertson. The oral argument went for 3 days, and finished on 20 July 2018. The judge is now writing a written decision.
See Australian Financial Review background story, and summary of Patent Office decision being appealed is here.
See blog post here.
See KWM article Google this: The High Court allows Google to be sued for defamation
See Sydney Morning Herald article
See HCA judgment Trkulja v Google LLC  HCA 25
I strongly urge you to review the issues papers and to provide feedback.
Direct registration will allow registration of domain names in Australia such as cyberspace.au.
There are other reforms being discussed. See the Issues Paper that was published at the end of January.
The judgment is here:
This is an important copyright and consumer protection law case. Redbubble recently appealed (and its seems that their appeal was lodged outside of the appeal window).
There is also a similar case pending, involving the Hell's Angels.
A good summary is located on the IP Whiteboard blog.
Google's search results included defamatory material. Google was found to be a secondary publisher.
Case note here.
See LA Times
See judgment at: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1305
According to the judgment, Meriton manipulated TripAdvisor in two ways:
The latest judgment on a procedural motion is http://www.judgments.fedcourt
The case is Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd
The case concerned a real estate agent advertising short term accommodation, using the name of a nearby Accor hotel (which was a registered trademark) to attract Internet users to the real estate agent's booking website.
The court confirmed findings of the trial judge that the following were trademark uses and trademark infringements: use of of the trademark in the domain name, use in metatags for the website, use in headings for the website, use in email addresses, and use in Google advertisements.
Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
In oral argument on 27 February 2017, Justice Kennedy drew an analogy between social media and the public square. Justice Ginsburg said restricting access to social media would mean being cut off from a very large part of the marketplace of ideas. The First Amendment includes not only the right to speak, but the right to receive information.
Trivago, a price comparison, recent lost an appeal in Australia regarding how it ordered the listings on its affiliate program website. Tri...
The United Nations intellectual property agency (WIPO) is the latest front in the US-China trade war. http://www.theage.com.au/world/sad-am...
This website has some useful links and references: http://www.epiphanysolutions.co.uk/article-index/rights-and-laws-of-the-internet/
Carly Long, an expert in domain name litigation, will teach the first half of the class this Tuesday evening. You may wish to have a look a...